“MITCHELL BITES TO PENALISE LITIGANTS WHO FAIL TO COMPLY”: EXTENSIONS OF TIME, APPEALS AND BAHO.

The case of Baho & Ors –v- Meerza [2014] EWCA Civ 669 is a further example of a litigant coming to grief because they failed to file an application in time and make the application for an extension of time promptly.

THE FACTS

The appellant sought permission to appeal a committal order of 21 days custody suspended on terms that the appellant attend the RCJ on the 6th February 2014 in order to provide information as to his means.

The appellant lodged an application for permission to appeal on the 12th December 2013. However the application was deficient in that the notice was not signed and the wrong fee had been paid.

The appellant then lodged a notice of appeal 7 days late and applied for an extension of time.

EXTENSION OF TIME APPLICATIONS AND MITCHELL

Treacy L.J. began by considering the principles governing extension of time applications and the effect of Mitchell.

“8. It is now apparent, for example in the light of the decision in Webb Resolutions Limited v e-Surve Limited [2004] 1 Costs Law Reports 182 that the principles governing an extension of time in relation to an application of this sort are those to be found in the recent decision of this court in the well known authority of Mitchell [2014] 1 WLR 795. At paragraphs 40 to 51 of Mitchell guidance is given as to the new, more robust approach to the court’s enforcement of compliance with rules, practice directions and court orders. It is clear that the new regime under Mitchell is a strict one; unless the default is trivial it is for the appellant to persuade the court to grant relief.

THE APPELLANT’S DELAY WAS NOT TRIVIAL

He then went on to consider whether a 7 day delay was “trivial.”

“9. I do not consider that in this context is delay of some 7 days is to be viewed as trivial. Mr Davies for this appellant conceded as much in the course of oral argument. Quite apart from that aspect of the matter, it is clear that Mitchell enjoins an application for relief to be made promptly. The fact is that in this case the application for an extension was made but on grounds which are conceded not to be apt, and the true basis upon which the application for an extension is based has only arisen many weeks later. There is an affidavit filed by the appellant on 29 January 2014 to which our attention has been drawn setting out that he was in Kuwait on the date set for the oral examination as a result of his visa having expired on 9November. ”

WAS THERE A GOOD REASON FOR THE BREACH?

It found that there was no good reason to grant the application for an extension of time.

“11. If the non-compliance is not to be viewed as trivial, then the burden is on the appellant to persuade the court to grant relief. Here there are in reality two defaults; first of all the gap in time between 12 and 19 December — some 7 days— is, in the context of a rule requiring filing of an application in relation to an appeal, a significant delay. Secondly, the reasons advanced for that delay have not emerged until many weeks after the application and in my judgment that is a factor which tells against this appellant.

12. The earlier failure on 12th December by Mr Pinnell to pay the correct fee and to lodge a signed application are themselves failures which reflect on the totality of the way in which the appellant has gone about this matter. I, in a case where the breach in this case is conceded not to be a trivial one, would in the circumstances refuse the application for an extension of time, given the failure to act expeditiously in providing reasons for the delay. ”

THE LACK OF PREJUDICE TO THE RESPONDENT DID NOT JUSTIFY THE EXTENSION

“13. The point has been made by Mr Davies that no prejudice has been caused to the respondent, nor has there been the sort of waste of court resources or time or detriment to other litigants which was identified in the case of Mitchell. That may be so, but the new dispensation requires parties to act with a degree of promptness and efficiency and if there has been a failure, to seek to correct that failure with good explanation in due time. In the circumstances of this case there has been a failure in that respect and the new regime as brought in by Mitchell bites to penalise litigants who fail to comply with the relevant guidance of this court.”

THE JUDGMENT OF UNDERHILL L.J.: MITCHELL PRINCIPLES APPLY

Underhill L.J. also concluded that the appellant’s application had to fail

“32. I agree that the application for an extension of time for appealing should be refused. If the claimant had promptly explained the errors made about the fee for filing the notice of appeal and the absence of a signature on the notice of appeal I might have regarded this as a case for an extension. Notwithstanding the approach that should now be taken to such applications following Mitchell and the fact that the application was more than trivially out of time, the mistake about the quantum of the fee required in the unusual case of an appeal for which permission is not necessary might be thought to be venial and it was not pointed out by the court at the time. However, a completely wrong explanation of the failure to lodge an appeal in time was initially given, and what is now said to be the correct explanation was given very late indeed—just over a week before this hearing—and without any explanation of that delay or of the discrepancy from the earlier explanation. Nor is there even now any explanation of the failure to have the notice of appeal signed. In those circumstances I do not think that the appellant is entitled to any indulgence.”

SUMMARY

When seeking an extension of time, after the deadline for compliance has passed, make sure the court is given an explanation for the default.

ALWAYS MAKE APPLICATIONS PROMPTLY. This cannot be stressed enough. This applies to ALL applications including relief from sanction applications, applications to set aside default judgment and applications for permission to appeal.